I agree with my friend.
When we're talking about clause 20, we need to understand—at least in my view of it, which comes from some of the concerns that were expressed early on in the process and during the consultations—that you have to recognize the fundamental pillars of the system and the independence of the judiciary, the independence of the prosecution service, and the independence of an independent bar.
The concerns were that if some of the provisions in the victims bill of rights went too far, they would impinge on the constitutional imperative of prosecutorial independence. It's my belief and understanding that clause 20 is here in this bill of rights to ensure that nothing in the bill is going to override that constitutional principle. It's a safeguard to protect the constitutionality of the bill.
I don't see it as impacting on clause 17. Clause 17 seems to stand alone in terms of a code amendment. There is lots of ambiguity in this section. When the proposed subclause 486.31(2) says:
The judge or justice may hold a hearing...the hearing may be in private.
it's unclear to me how private that's going to be. Is it simply in camera so the public won't be there, or is it ex parte so the defence and the accused won't be there? It's ambiguous to me.
I agree with the comments from Mr. Goguen that the only possible situation I could envision is where death is at issue, but it's not clear to me in the section that this would be the reality there.
I'd also be interested in seeing the case law, because I took a look, based on the exchange at the committee with Mr. Krongold, who was here. I can't find any cases, appellate or higher, that deal with anonymity of witnesses. There is the use of pseudonyms and that kind of thing, but what is contemplated in this bill, in terms of any information that could disclose the identity, is unheard of.
I haven't found it in my research. I'd certainly consider any cases that do come along, but I think this one is particularly problematic as it's currently drafted.